The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-01-05

taken on the trial on this point.
The sixth. instruction given for the
plaintiff was as follows:
6. The court instructs the jury that
if they believe from the evidence tnat
the plaintiff, III. Krasnopolski, over
valued the amount of his loss, or otner-
wise, and that such generalization was
excessive, the defendant cannot defeat
his recovery of his actual loss unless
they believe further from all the EVIL
depce in the case that such oyer-vaiua-
ton was made knowingly and wilfuiiy
for the purpose of obtaining from defen-
dant more than he was justly entitled
to, or for the purpose of defrauding de-
| PENDANT.
The plaintiff asked the following in
struction:
.. The court further instructs the jury
that it is only necessary for the plaintiff
to establish by preponderance of the
evidence in the cause the amount of his
| loss by fire; and that before the defen-
dants are entitled to any reduction OF
the amount of the insurance named IN
the policy, they must believe from
preponderance of the evidence that the
plaintiff did not lose the amount of
goods claimed, or that he did not have
$4,000 at the time they were burnt.
The court modified this instruction
by adding ''unless the jury believe from
| the evidence the facts stated in the in
| structions for the defendant, in which
case they will find for the defendant"
The plaintiff in his seventh instruc-
ton asked the following, which the
| court refused:
z. The court further instructs the
jury that the defendant having chosen
to rest his defence on the ground of
fraud and false swearing in making his
proof of loss, that then it is incumbent
upon the defendant to show such false
swearing and generalization by a pre-
ponderance of all the evidence in the
cause upon that issue.
| The Jury found for the defendant.
Max Moyses, administrator of the estate
of III. Krasnopolski, then deceased, took
this appeal.
COOPER, c. j., delivered the opinion of
the Court.
| 1t would have been more satisfactory
| if the court below had given the 9TH
instruction asked by the plaintiff, which
it refused outright, and had not modi-
| fed the I'd as was done. But the 9th
| instruction given for the plaintiff dis
tinctly informed the jury that he was
entitled to recover, unless, from all the
evidence in the case, they believed that
the assured over-yalued his goods "kpow-
ingly and wilfully, for the purpose of
obtaining from the defendant more than
| he was entitled to, or for the purpose of
otherwise defrauding the defendant"
| That the jury did believe this from "all
the evidence" is shown by the verdict,
and if they did so believe, it is manifest
that no other result would have followed
| if the 9TH instruction had been given
| Where great numbers of instructions
are asked by party, with shades Of
differences In the rules announced by
| them, and one Is given and another
slightly different and more favorable to
him is refused, it ought at least to prob
ably appear that injury may nave been
done to warrant a reversal. By the
subtle trained mind of the lawyer, nice
distinctions may be clearly appreciated,
| but to the plain common sense of the
average juror, which is appealed 20 by
our laws for decisions of fact, it is more
| than doubtful if distinction would
appear between the instruction given
aud that refused, which, on the clearly
defined issue presented in this case,
would have carried the verdict on one
instruction for the defendant, and on
the other for the plaintiff.
| Moye v. Herndon, 80 Miss, no.
The second instruction seems to US to
have been correct as asked, and not
wrong as given. The sole effect of the
modification made, was to direct the
attention of the jury, and perhaps un-
necessarily, to the instructions given for
| the defendant. On the whole case, how
ever, we perceive no error necessitating
reversal. The judgment is affirmed.